Last week, the International Criminal Court (ICC or Court) in The Hague commenced and concluded a historically short trial against Ahmad Al-Faqi Al-Mahdi. Al Mahdi was prosecuted for the war crime of intentionally destroying cultural, religious and historic monuments, namely the mausoleums in Timbuktu. This is the first time that the ICC has prosecuted crimes relating to the protection of cultural heritage. It is also a first for the Court to prosecute an Islamic extremist, and the first time that a defendant has pleaded guilty, significantly simplifying and shortening the trial.

After all the ICC’s recent problems with lack of evidence, witness intimidations, and protracted procedures, this short and in all likelihood successful case (the decision is expected on 27 September) can easily be called a resounding win. At the same time, even this case has not escaped criticism (see for example here and here). Why was Al Mahdi only prosecuted for destroying cultural heritage, even though he also allegedly committed murder and rape? And why is the Court spending its scarce resources prosecuting this mid-level militiaman rather than on the leaders behind the violence in Mali?

Questions like these are justified, because the ICC fails to explain why it makes the choices it does. This is a missed opportunity. In recent years, the Court has increasingly been the subject of sharp critique. Scholars, activists, and politicians have accused the ICC of being anti-African, of failing to meet the needs of victims, and of being a “political” court. It is true that the complaint that the Court is “political” cannot always be separated from the self-interest of leaders attempting to evade the Court’s docket. But we should not dismiss this critique, as the Court tends to do. Instead, we should recognize that the ICC is indeed (also) a political court. Read the rest of this entry…

Below are two possible exam questions for the students and cognoscenti of international criminal law with regard to the possible involvement of the International Criminal Court in the ongoing campaign of state-sanctioned extrajudicial killings in the Philippines, a manifest violation of the right to life under customary international law and Article 6 ICCPR that has so far claimed almost 2,000 lives with no sign of abating (see, e.g, here and here). I would just note, by way of preface, that we have devoted a lot of attention on the blog to the recent arbitral award on the South China Sea dispute, but are yet to comment on the sheer irony of a state claiming the protection of international law while simultaneously proceeding to violate that law so thoroughly and so tragically – I imagine because the irony is so obvious, so depressing, and so familiar. We shall see whether a significant cost will be exacted internationally from the Duterte regime for its violation of the most fundamental of human rights, but I’m not holding my breath.

In the meantime, note that the Philippines have been a party of the Rome Statute since 2011 and consider – if you were the ICC Prosecutor, what would you do now? Should you intervene, how, to what benefit and at what cost? Then ponder these two little exam questions:

“Despite plausible evidence that 2,000 individuals have been killed in the Philippines with the support of the government, these killings do not satisfy the ‘widespread or systematic attack directed against any civilian population’ chapeau requirement for crimes against humanity under Article 7 of the Rome Statute. In the absence of an armed conflict they equally cannot constitute war crimes, even if the government rhetorically claims to be fighting a ‘war against drugs.’ Accordingly, the ICC is without jurisdiction with respect to this situation, no matter how tragic.” Discuss.

“Even if the substantive elements of crimes against humanity or war crimes were met, President Duterte could not be qualified as their ‘indirect co-perpetrator.’ Shame – because we totally could have nabbed him under the ICTY/R doctrine of joint criminal enterprise!” Discuss.

1. Call for Papers: Cognitive Sociology, Culture, and International Law. The third workshop on the sociology of international law aims to break open the study of interactions between various cognitive processes and the formation, interpretation and implementation of international law. The workshop is hosted by iCourts, Centre of Excellence for International Courts, Faculty of Law, University of Copenhagen and will take place on 28-29 April 2017. Abstracts of no more than 300 words should be sent to Sungjoon Cho at scho1 {at} kentlaw.iit(.)edu, by 1 November 2016, and must include the author’s name, affiliation, and full contact information. Decisions will be sent by 15 December 2016. Those presenting will be expected to provide short discussion papers (3,000-4,000 words) by 15 March 2017. See here for full details.

2. IGLP Asian Regional Workshop. Applications are now being accepted for the IGLP Asian Regional Workshop, organized by the Institute for Global Law and Policy at Harvard Law School and hosted and sponsored by the Thailand Institute of Justice in Bangkok from 6-11 January 2017. Inaugurated in 2015, the IGLP Regional Workshop is an intensive, regionally-focused residential program that brings together an international cohort of young doctoral scholars, post-doctoral scholars and junior faculty for intensive collaboration, mentoring, and cross-training. The 2017 IGLP Regional Workshop will focus on how issues of global law, economic policy, social justice and governance relate to ongoing legal and policy debates throughout Asia and across the world, while offering opportunities to strengthen participants’ writing and research. The week features a series of plenaries, lectures, roundtables, writing workshops, and networking opportunities, in addition to a variety of innovative mini-courses related to law and policy. We encourage applications from young scholars across Asia and worldwide who would benefit from intensive collaboration with their global peers and IGLP’s junior and senior faculty. Applications are due by 30 September 2016. See here for more information and to apply.

3. Call for Papers: Regional Human Rights Systems in Crisis. Wisconsin International Law Journal (WILJ)invites submission of abstracts of not more than 500 words from legal scholars and practitioners in the fields of regional human rights and international law for its Annual Symposium on Regional Human Rights Systems in Crisis.Authors of articles selected at the final review stage will be invited to present at the 2017 WILJ Annual Symposium on 31 March 2017, at the University of Wisconsin Law School, and their articles will be published in our 2017 Symposium issue. Travel (economy class) and accommodation will be covered for accepted applicants. Submission is restricted to papers that have not yet been published. Please see here for more information.

References to “backlash” are becoming increasingly ubiquitous in international law scholarship (see for example this recent EJIL article and accompanying EJIL:Talk! Discussion). Few have, however, sought to define or unpack the complexities of backlash. In this post, we draw upon our chapter in a forthcoming book titled The Judicialization of International Law – A Mixed Blessing? (Oxford University Press, 2017). We seek to develop a notion of “backlash”, identify what underlies it, and illuminate its potential unintended consequences. While we focus upon investment treaty arbitration as a case study, we endeavor to illuminate the complexities of evaluating opposition to international regimes. These issues hold particular relevance to investor-State arbitration given current State negotiations of major bi‑ and multi‑ lateral treaties with investor-State protections. They are also likely to gain in relevance with many investment treaties shortly coming up for renewal or termination.

Defining Backlash

The notion of backlash has seldom been defined, instead being used as an umbrella term to capture a range of forms of critique and contestation. These include State decisions to review, not renew, terminate, or withdraw from existing treaties; refusals to negotiate or sign investment treaties; and changes in the approaches of States to the negotiation of new treaties. There are also forms of “backlash” arising from civil society, non-governmental organizations, and academia in the form of protests, comments in public consultation processes, increased reporting, and academic discussion. Such acts, along with others, are increasingly cited as evidence of “a rising backlash” against the regime of investor-State arbitration generally.

I was visiting the site of the American Journal of International Law this morning, and this particular advertising blurb caught my eye:

The Journal ranks as the most-cited international law journal on Google Scholar. It is also considered by the nonprofit, scholarly periodical resource JSTOR to be “the premier English-language scholarly journal in its field.”

Wow, I thought – it’s no longer sufficient to say that the international law academic profession as a whole regards the AJIL and EJIL as the two most prestigious journals in the field, but even when we are self-promoting to our own readership we have to refer to some kind of metric or league table. Second wow, I had no idea that Google Scholar ranked international law journals, I should really check that out. Here’s the table:

The UK Government’s re-commitment in May to replacing the Human Rights Act (HRA) immediately followed the Supreme Court’s further hearings on one of the more controversial cases under the Act – the Serdar Mohammed claim against the Ministry of Defence (on which additional hearings are expected later this year). The claimant, who on the assumed facts was a Taliban commander detained by the UK military in Afghanistan for 110 days in 2010, alleges a breach of his right to liberty under the European Convention on Human Rights (ECHR).

As readers will recall, the lower courts upheld this claim, prompting controversy in the press and in academia. Preventative detention (or “internment”) of the enemy is widely regarded as an essential incident of armed conflict. The suggestion that the ECHR prohibited the UK from detaining a Taliban commander to prevent his engagement in hostilities against British forces raised obvious concerns about the application of the ECHR in armed conflict, also fuelling further criticism of the HRA.

Since international humanitarian law (IHL) norms designed for the context of hostilities do not prohibit internment in non-international armed conflicts (NIACs) like the Afghan conflict in 2010, much of the legal debate focused on the content of these norms and their relationship with the ECHR. The High Court decision, declining to use IHL to override the ECHR, was criticised as “an outright rejection of the applicability of IHL to the question of who may be detained for what reasons and following which procedure” in NIACs.

Rather than rehearsing the extensive debates (see a small sample here and here) over whether IHL norms authorise detention in NIACs, this post challenges an assumption about the interpretation of the ECHR which underlies the arguments raised by both parties to the claim. Its focus is on a specific provision of the ECHR and its application to situations like that in which the claimant was detained – state participation in NIACs outside their own territory (extra-territorial NIACs).

The result is an alternative approach, based on a context-sensitive interpretation of the ECHR complemented by IHL, which helps address the concern that the ECHR and HRA are inherently unsuited to conditions of armed conflict. Read the rest of this entry…

In an earlier post of 27 July I provided a first assessment of Turkey’s declared derogation from the European Convention on Human Rights (ECHR) and an assessment what kind of measures could be expected, as derogations both from the ECHR and the International Covenant on Civil and Political Rights (ICCPR). This new post provides an update, partly in response to commentators.

On 11 August, the United Nations published Turkey’s notification notification of derogations from the ICCPR. According to its text, the actual measure was ‘effected’ more than a week earlier, on 2 August. Turkey’s notification, dated on 21 July, refers to the 90-day state of emergency that had been declared on 20 July under domestic law. The most interesting element in Turkey’s ICCPR notification is that it provides a list of articles from which Turkey ‘may’ derogate:

The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. In this process, measures taken may involve derogation from obligations under the International Covenant on Civil and Political Rights regarding Articles 2/3, 9, 10, 12, 13, 14, 17, 19, 21, 22, 25, 26 and 27, as permissible in Article 4 of the said Covenant.

Again Turkey follows the recent example of France in specifying the articles under the ICCPR but not under the ECHR, and by not being explicit what the actual derogations are, instead only stating that derogations from the ICCPR ‘may’ result from measures taken pursuant to the state of emergency.

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security;Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

As is well known, the 1982 United Nations Convention on the Law of the Sea (here; hereafter Convention) provides for compulsory dispute settlement, albeit subject to various limitations and exceptions. In principle, any dispute regarding the interpretation or application of the Convention may be submitted to binding settlement (Article 286), via a choice for the International Tribunal for the Law of the Sea, the International Court of Justice or arbitration under Annex VIII (Article 287). In case of varying choices by the parties, the default procedure is an Annex VII special arbitration, and this was the procedure used by the Philippines to initiate the case against China.

The latest award in this case (here; hereafter Award on the Merits) has already been commented upon (here, here and here; and here, here, here, here, here and here). Nevertheless, a critical reading of that award and its predecessor on jurisdiction and admissibility (here; noting other views here and here; hereafter Award on Jurisdiction) may bare certain weaknesses that go to their core, and hence possibly their validity, namely whether the Tribunal possessed the requisite jurisdiction to decide certain disputes and render its award on the merits in the first place. Possible flaws lie with its claim that certain disputes do not require it to determine sovereignty, with its claim that China does not invoke historic title, and with its claim that no issues of delimitation are at stake.